The 7th Circuit Court of Appeals has affirmed summary judgment for the city of Jeffersonville after finding that a terminated
employee’s lawsuit claiming her firing violated the Americans with Disabilities Act can’t proceed because the
woman doesn’t qualify as “disabled” under the ADA.

Angelina Povey injured her wrist while working as an attendant at the city’s animal shelter. This injury caused her
job duties to be restricted and placed more requirements on the other employees to work more weekends. A co-worker began harassing
Povey because of the effect of her injury on his schedule. She reported the co-worker’s comments, and the two were assigned
to duties away from each other while working.

Shortly after Povey filed a complaint against the co-worker, the city learned that Povey’s permanent physical restrictions
would leave her unable to perform any of the essential functions of an adoption kennel attendant. Her employment was then
terminated.

She filed her lawsuit alleging discrimination under the ADA and that she was fired in retaliation for her prior complaints
of discrimination and harassment. U.S. Chief Judge Richard Young granted summary judgment for the city, finding Povey failed
to demonstrate she was a qualified individual under the ADA. She didn’t provide evidence that her wrist injury impaired
her from completing daily tasks; her perceived impairment foreclosed her from accepting a broad range or class of jobs; she
was perceived unable to perform manual tasks; she was a qualified individual as defined under the ADA; or she was terminated
in retaliation for exercising her rights under the ADA.

Povey argued on appeal that the city regarded her as having a substantial impairment that limited her abilities in the major
life activity of working, pointing to comments from her supervisors. One supervisor said that Povey wasn’t able
to use her right hand, and another believed Povey’s work restrictions prevented her from performing her job and that
the city didn’t have a job for someone with a permanent disability.

The 7th Circuit rejected her claims, finding none of the statements to be so sweeping as to exclude Povey from a broad class
of jobs. Those statements don’t constitute facts from which a jury could reasonably conclude that Jeffersonville regarded
Povey as disabled under the ADA, wrote Judge Sharon Johnson Coleman, District Judge for the Northern District of Illinois,
sitting by designation.

Povey is not protected by the ADA provisions, and her retaliation claim under the ADA also fails.

The 7th Circuit Court of Appeals has reversed the denial of a man’s request for disability benefits from the Social
Security Administration because it found the administrative law judge didn’t adequately explain why the man hadn’t
met requirements for a presumptive disability.

Charles Kastner worked as a delivery manager in 2004 when he felt a pop in his neck while unloading a heavy refrigerator.
His pain increased as the days went on. In addition to this incident, 16 years earlier Kastner had a workplace accident where
he fell from a safety ladder which broke while he was standing on it.

Kastner visited several doctors for his pain and mobility issues. He had two surgeries to remove a herniated cervical disc.
By March 2007, Kastner’s neuropathic pain had returned and he was referred for chronic pain management.

He applied for disability insurance benefits in June 2006, claiming he couldn’t work due to chronic neck pain. The
administrative law judge denied the claim in November 2008, finding Kastner could perform sedentary work. The Appeals Council
denied a request for review and the District Court affirmed the ALJ’s decision.

But the 7th Circuit found the ALJ’s decision lacked evidence to support her decision. Kastner argued that his condition
meets the requirements for disorders of the spine found in the Listing of Impairments. The commissioner for the Social Security
Administration advanced several arguments defending the ALJ’s decision, but the agency cites to evidence the ALJ didn’t
rely upon, Judge Ann Claire Williams wrote.

“On appeal, the Commissioner may not generate a novel basis for the ALJ’s determination. To permit meaningful
review, the ALJ was obligated to explain sufficiently what she meant by ‘limitation of motion of the spine as anticipated
by section 1.04A,’” she wrote.

The 7th Circuit sent the case back to the SSA, encouraging the administrative law judge to consider and account for certain
medical evidence along with Kastner’s personal statements about his symptoms.

__________

Oct. 11

Agency Review – Prevailing Party

Edward Jeroski, doing business as USA Cleaning Service and Building Maintenance v. Federal Mine Safety and Health Review
Commission and U.S. Secretary of Labor

11-3687

Addressing for the first time what qualifies as a “prevailing party” under the Equal Access to Justice Act, the
7th Circuit Court of Appeals sided with several other appellate courts that have ruled on the issue.

The Circuit Court was asked to review the denial by the Federal Mine Safety and Health Review Administration for attorney
fees paid fighting an order imposed by the agency that janitors employed by USA Cleaning at the Essroc Cement Corp. cement
plant in Logansport, Ind., undergo 24 hours of safety training. The agency forbade USA Cleaning to allow the janitors to reenter
the plant until they completed the training.

Essroc stepped in and hired attorneys on behalf of USA Cleaning. Those attorneys racked up $22,000 in legal bills while contesting
the order, arguing that the cement plant doesn’t constitute a mine and therefore isn’t subject to the order. The
agency vacated the order, and the Federal Mine Safety and Health Review Commission dismissed, without prejudice, USA Cleaning’s
contest proceeding. The commission also denied attorney fees.

Judge Richard Posner authored the 12-page opinion, in which the 7th Circuit agreed with the Secretary of Labor that USA Cleaning
was not a “prevailing party” in the aborted agency proceeding.

All eight federal appellate courts to have considered this issue have found that USA Cleaning would not be considered a “prevailing
party” under the Equal Access to Justice Act. Although those cases have dealt with the section of the act on judicial
adjudication, the judges found no reason to deviate from the rulings pertaining to an administrative adjudication, as is the
case here.

“And while not all the decisions involve voluntary dismissals, all hold that a ‘prevailing party’ is a
party that obtains relief which determines or affects its legal status, as would have happened in this case had the review
commission, rather than dismissing the contest proceeding without prejudice, ruled that USA Cleaning’s employees were
not ‘miners’ within the meaning of the mine-safety act and the regulations under it,” Posner wrote in dismissing
the petition for review.

Posner also noted the court’s disapproval of USA Cleaning’s denunciation of the Secretary of Labor’s brief
as “vitriolic.” The company’s reply brief is “bumptious, hyperbolic – even vitriolic –
an angry Essroc speaking through Essroc’s lawyers. We realize there’s no love lost between mine operators and
their federal regulators, but we expect the lawyers to be temperate,” the court concluded.

Indiana Justice Mark Massa delved into the history of the Mortgage Electronic Registration Systems Inc. and its role in today’s
mortgage industry in a case involving a foreclosed home in Madison County.

The opinion provides background on how the mortgage industry has changed from involving just a borrower and lender to now
include a lender, loan servicer, title company, and a whole host of other parties. Massa explains the creation in the 1990s
of MERS, which maintains a computer database that tracks servicing and ownership rights of mortgage loans in the U.S. MERS
member banks list MERS as “nominee” for lender and as “mortgagee” on their mortgage documents.

Shannon Barabas obtained a mortgage through Irwin Mortgage Corp. in 2005, to which the agreement said that the security instrument
is given to MERS “(solely as nominee for Lender, as hereinafter defined, and Lender’s successors and assigns),
as mortgagee.”

Two years later, she took a second mortgage out with ReCasa Financial Group. But she couldn’t keep up on payments with
ReCasa, and it filed suit for foreclosure of the mortgage and for a sheriff’s sale. Irwin disclaimed any interest in
the real estate in 2008. The sheriff’s sale occurred in January 2009.

In April 2009, MERS assigned the Irwin mortgage to Citimortgage. Citmortgage then filed a motion pursuant to Ind. Trial Rules
24(A) and 60(B) seeking to intervene in the foreclosure suit and asking that the judgment granted to ReCasa be subject to
the mortgage now held by Citimortgage. The trial judge ultimately denied the motion.

The justices unanimously held that Citimortgage has the right to intervene. They found the mortgage contract Irwin had with
MERS to be ambiguous and that the parties intended to designate MERS as the lender’s agent.

“This agency relationship conferred various rights upon MERS, including rights that constitute protected property interests
sufficient to entitle MERS – and Citimortgage standing in the shoes of MERS – to meet the first requirement for
intervention of right,” Massa wrote. MERS’ interest in the mortgage survived through its other principals, including
Citimortgage.

The high court also found that disposition of the foreclosure case may impair Citimortgage’s interest and that no other
party is adequately representing that interest. Citimortgage’s motion to intervene was timely, as well as its motion
for relief, because ReCasa failed to provide Citimortgage or its agent MERS with notice of the foreclosure suit.

Massa pointed out that this case highlights issues with using laws established in 1877 to deal with a modern mortgage industry.
The drafters of the original version of I.C. 32-29-8-1 couldn’t have imagined more than two or three actors involved,
Massa wrote. The General Assembly may soon have to modernize the law to accommodate “this new and larger cast of characters,”
he wrote.

The case is sent back to the trial court with instructions to grant the motion to intervene and amend the default judgment
to provide that ReCasa took Barabas’ property subject to Citimortgage’s lien.

Indiana Court of Appeals

Oct. 3

Criminal – Evidence

Steven B. Steele v. State of Indiana

49A05-1202-CR-54

In affirming the denial of a man’s motion to suppress statements he made to an officer at a gas station, the Indiana
Court of Appeals pointed out that his arguments pertaining to Indiana Evidence Rule 617 would be better presented to the Evidence
Rules Review Committee.

Indianapolis Metropolitan Police Department officer Steven Ferklic found Steven Steele slumped over unconscious in his Jeep,
which was stopped near an intersection with three flat tires and the engine off. Eventually, Steele awoke, and Ferklic arrested
him for misdemeanor public intoxication. Ferklic took Steele to a nearby gas station to administer field sobriety tests on
a more level surface. He read Steele his Miranda rights, after which Steele admitted he had driven the Jeep.

The officer then took Steele to a police station to administer more tests, which Steele failed. He was then charged with
various misdemeanor and felony drunken-driving counts.

Steele sought to have his statements made to Ferklic at the gas station suppressed based on Ind. Evidence Rule 617, which
says evidence of a statement made by someone during a custodial interrogation in a place of detention shall not be admitted
against the person unless an electronic recording of the statement was made, with a few exceptions. Steele claims Ferklic
violated this rule by not transporting him to a “place of detention” to record his statement.

“Two observations are in order. One, Evidence Rule 617 does not apply in this case because Officer Ferklic’s
interrogation of Steele did not occur in a Place of Detention. And two, the rule does not, either explicitly or implicitly,
impose an affirmative duty on law enforcement officers to transport a person to a Place of Detention before conducting a Custodial
Interrogation. Steele’s policy arguments for imposing such a duty should be directed to the Evidence Rules Review Committee,
which may recommend to the Indiana Supreme Court that the rule be amended accordingly,” Judge Terry Crone wrote.

The Indiana Court of Appeals affirmed the denial of a woman’s motion to correct error and relief from judgment following
a verdict in favor of Clarian Health Partners on her medical malpractice complaint. The court found that Clarian’s counsel
did not commit misconduct by not supplementing the deposition testimony of one of its doctors – a nonparty to the case
– prior to trial.

Deborah Cleveland filed a proposed medical malpractice complaint with the Indiana Department of Insurance against Clarian
– now known as Indiana University Health – and the doctors who treated her husband, Robin, after he came to the
hospital in 2002 suffering traumatic injuries from a fall. One of the physicians was second-year resident Dr. Jennifer Choi.
Robin Cleveland arrived at the hospital at 9:53 a.m., but did not go into surgery until around 10:45 a.m. He bled to death
while in surgery.

The 2004 deposition and 2011 trial testimony of Choi are at issue in this appeal. In her deposition, Choi sometimes gave
specific times for when the decision was made to move Robin Cleveland to surgery; at other times, she gave vague answers or
said she was unsure. The medical review panel found no malpractice occurred. Deborah Cleveland then filed a lawsuit in Marion
Superior Court. All the defendants were eventually dismissed except Clarian.

At the trial, Choi’s testimony didn’t always match up to her deposition, and some of her answers changed. She
said this was in part due to a review of the operative log and records. She even admitted her recollection of the events may
have been incorrect at the time of the deposition.

Deborah Cleveland lost her suit; the trial court denied her motion to correct error and for relief from judgment. She argued
that Ind. Trial Rule 26(E)(2) imposes a duty on a party to amend a nonparty witness’s deposition testimony when that
party learns of a change in the testimony before trial; and that Clarian’s counsel committed misconduct under Trial
Rule 60(B)(3) when counsel did not supplement Choi’s deposition testimony prior to trial. Robin Cleveland cited the
dram shop case Outback Steakhouse of Florida v. Markley, 856 N.E.2d 65, 72 (Ind. 2006), to support her argument.

But the Court of Appeals found Outback distinguishable. In the instant case, Choi’s trial testimony was not
directly contradictory, as was the testimony at question in Outback.

“When Dr. Choi’s deposition testimony is considered in its entirety, there is an insufficient factual basis in
the record to conclude that there was a clear, substantial, and material change in her testimony that, if Trial Rule 26(E)(2)
applied, would have triggered any duty on Clarian’s attorneys to amend that testimony prior to trial,” Judge Edward
Najam wrote.

There is also no factual basis to show that Clarian knew or should have known that Choi’s trial testimony would render
her prior responses incorrect, so the hospital did not have a duty to supplement the deposition testimony and did not commit
misconduct by failing to amend that testimony, he continued.

__________

Oct. 5

Small Claims – HOA Fee

Heartland Crossing Foundation, Inc. v. Chris M. Dotlich

55A01-1203-SC-119

A Morgan County man who took no action to defend a judgment in his favor nevertheless prevailed in the Indiana Court of Appeals.
The judges upheld a trial court ruling that rejected a homeowners association charge it called an “abusive junk fee.”

The housing development in Camby sued in small claims court a homeowner who had fallen behind on homeowner association dues.
Heartland Crossing Foundation sought to collect $795 in attorney fees and a $50 “administrative fee” in addition
to a nearly 33 percent penalty for a late payment.

The trial court found in Chris Dotlich’s favor, holding that it was a cost not incurred and without basis and was “nothing
more than an abusive junk fee.” The trial court also rejected Heartland’s plea for attorney fees because they
were based on the administrative fee.

“Initially, we observe that Dotlich did not file an appellee’s brief,” Judge L. Mark Bailey wrote in a
unanimous six-page opinion. “Under such a circumstance, we do not undertake to develop an argument on his behalf, and
we may reverse upon Heartland’s prima facie showing of reversible error.”

The court ruled that a declaration of covenants, conditions, easements and restrictions of Heartland Crossing did not contain
language allowing it to collect an administrative fee.

“The evidence most favorable to the judgment discloses that Heartland, by recovering late fees and attorneys’
fees from Dotlich, already recovered the ‘costs of collection’ and ‘reasonable attorney’s fees and
paraprofessional fees actually incurred[.]’ … Therefore, under the terms of the Declaration, nothing remains
for Heartland to recover,” the panel ruled.

“Dotlich does not owe Heartland the $50 ‘administrative fee,’ costs, or $795.10 in attorneys’ fees.
Therefore, the trial court’s judgment for Dotlich is not clearly erroneous,” Bailey wrote.

__________

Oct. 9

Civil Plenary – Inmate/Kosher Meals Request

Jeffrey Allen Rowe v. Bruce Lemon, et al.

49A02-1204-PL-344

A Pendleton Correctional Facility inmate will not be able to collect monetary damages against employees of the Indiana Department
of Correction, but his request for kosher meals will get a second review. The Indiana Court of Appeals affirmed
in part, reversed in part and remanded a lower court’s summary judgment for the Indiana Department of Corrections which
resulted in the dismissal of the complaint made by inmate Jeffrey Allen Rowe.

The issues before the COA were whether the inmate is entitled to pursue monetary damages against the defendants under either
42 U.S.C. 1983 or the Religious Land Use and Institutionalized Persons Act (RLUIPA) and whether there is a genuine issue of
material fact precluding summary judgment on Rowe’s claims under RLUIPA

On Jan. 19, 2011, Rowe filed an “Offender Request for Religious Accommodation” asking that he be provided kosher
meals. He is not Jewish but professes to believe in “Identity Christianity” and maintains God commanded that followers
adhere to the Biblical food laws in Leviticus 11 and Deuteronomy 14. These are the rules that kosher diets follow.

After Rowe’s request and subsequent appeals were denied, he filed a complaint against DOC officials and the commissioner
seeking compensatory, punitive, and nominal damages as well as a declaratory judgment injunction requiring that he be served
kosher meals. The complaint invoked RLUIPA and 42 U.S.C. 1983 for alleged violations of his constitutional rights under the
Free Exercise and Establishment Clauses of the First Amendment to the U.S. Constitution and the Equal Protection Clause of
the 14th Amendment.

The COA affirmed the grant of summary judgment against Rowe on his constitutional claims. It did not review Rowe’s
Section 1983 constitutional claims because the remedies to which the inmate would be entitled are virtually identical to RLUIPA.

However, the COA did reverse the grant of summary judgment against Rowe on his claims under RLUIPA because there is a genuine
issue of material fact regarding the sincerity of his religious beliefs. The court remanded for further proceedings on those
claims.

Criminal – Evidence/Criminal Trespass & Disorderly Conduct

Paul R. Semenick v. State of Indiana

49A02-1111-CR-1035

A criminal conviction that resulted from church member’s demand for quiet during a worship service has been overturned
by the Indiana Court of Appeals on the grounds that the evidence was insufficient to sustain the conviction.

The Indiana Court of Appeals reversed the trial court’s conviction of Paul R. Semenick for criminal trespass, as a
Class A misdemeanor. Semenick, a long-time member of Lakeview Christian Church, was arrested and charged with criminal trespass
and disorderly conduct following a scuffle at a Sunday worship service.

The incident began when Semenick told a volunteer greeter and other church members they were speaking too loudly. When one
of the congregants placed his hand on Semenick’s shoulder to apologize, Semenick told him to “get your hand off
me.” The volunteer greeter then brought into the sanctuary an off-duty police officer, Sgt. John Dierdorf, who patrols
the church’s parking lot during services.

Although Semenick was seated and participating in the worship, the police sergeant asked him to leave. Semenick exited into
the main hallway but did not leave the building and “kept on ranting,” referring to the police officer as a “rent-a-cop,”
until he was arrested.

At the conclusion of the trial, Semenick was acquitted of disorderly conduct but convicted of criminal trespass. The trial
court sentenced him to 365 days of imprisonment, suspending 363 days and ordering him to stay away from Lakeview.

Semenick appealed.

In reversing the trial court’s ruling, the Court of Appeals ruled the state failed in its burden to prove material
elements of criminal trespass because it did not provide evidence that disavowed Semenick’s contractual interest in
being on the property and it did not delineate Dierdorf’s authority.

Judge Paul Mathias dissented, concluding the evidence presented at trial was sufficient to support the jury’s conviction.

“Under the applicable standard of review for claims challenging the sufficiency of the evidence supporting a jury verdict,
I conclude that the state presented sufficient evidence that Sgt. Dierdorf was an agent of the Church and that Mr. Semenick
had no contractual interest in Church premises,” Mathias wrote. “And even if Mr. Semenick had some limited right
to be on the Church premises, I believe his disruptive behavior terminated that limited right.”

Criminal – Firearm/Criminal Recklessness

Jon E. Garcia v. State of Indiana

20A04-1202-CR-257

A car is a “place people are likely to gather,” the Indiana Court of Appeals ruled, unanimously affirming a Class
C felony criminal recklessness conviction and eight-year sentence for a man who fired a gun into car in which a former gang
ally was a passenger in Goshen.

Jon Garcia, a member of the Vatos Locos gang, argued that the court erred in denying his motion for a directed verdict under
Indiana Trial Rule 50(A). He also argued that I.C. 35-42-2-2(c)(3)(A) defines criminal recklessness as a Class C felony if
“it is committed by shooting a firearm into an inhabited dwelling or other building or place where people are likely
to gather.” Garcia argued a car didn’t meet that definition.

“We conclude that a vehicle can be a ‘place’ as contemplated by the criminal recklessness statute,”
Judge Michael Barnes wrote in a unanimous opinion. “Further, we have no difficulty holding that a vehicle can be a ‘place
where people are likely to gather.’ As a result, the trial court properly denied Garcia’s motion for directed
verdict,” Barnes wrote.

Civil Plenary – Annexation/Remonstrance

American Cold Storage, et al. v. The City of Boonville

87A01-1112-PL-610

The Indiana Court of Appeals reversed a trial court decision that upheld an annexation by the city of Boonville, finding
that the trial court erred in counting separate state-owned parcels of a highway for purposes of remonstrance.

The 2-1 decision split over the interpretation of how a state highway should be evaluated under the remonstrance statutes,
which allow landowners standing to challenge annexation when 65 percent of those affected object.

Judge John Baker wrote that Warrick Superior Special Judge Brent Almon erred when he counted State Road 62 as separate parcels
that the state had to purchase to obtain right of way. “We conclude that this was error, inasmuch as it undermines the
General Assembly’s intent to provide a mechanism for landowners to oppose annexation,” Baker wrote.

“If each parcel of a public highway is counted separately, the remonstrance process is distorted,” he wrote in
a majority opinion joined by Chief Judge Margret Robb.

Boonville argued that the parcels should be counted separately and that the plaintiffs had waived their right to raise the
issue because it wasn’t heard in a prior appeal regarding the same annexation. Judge Cale Bradford sided with the city
on both counts in his dissent.

“The General Assembly has provided a process for challenging annexation, and if we conclude that the process is distorted
in this case simply because it does not seem that the landowners will be able to remonstrate, I have a difficult time seeing
how we could avoid reaching the same conclusion in any case where the challengers are unable to reach the statutory thresholds,”
Bradford wrote.

The Indiana Court of Appeals ruled that it would not reweigh California court decisions in favor of insurers who had no responsibility
to cover environmental cleanup costs at former Thomson plants.

“There do not seem to be any special circumstances in this case that would warrant departure from the general rule
that comity favors deference to the California courts,” Judge Cale Bradford wrote for the unanimous panel. “The
trial court did not abuse its discretion in deferring to the California decision.”

At issue in were the costs of environmental cleanup at facilities Thomson owned, including two sites in Marion and one in
Fort Wayne that Thomson had purchased from Technicolor.

In 2010, a California trial court issued a summary judgment concluding that California law applied to the interpretation
of policies regarding the Technicolor sites, and California courts upheld the decision on appeal.

“Thomson did not file for summary judgment on the choice-of-law question in the Indiana action until approximately
ten months after the California trial court had already ruled against it on the same question, and there is no indication
that the California suit was not proceeding normally in the California court system,” Bradford wrote.

“We believe it is also worth noting that the effect of giving deference to the California decision has the effect of
applying California law to those sites contaminated by Technicolor, apparently a California-based company before Thomson’s
acquisition, and applying Indiana law to those sites contaminated by Thomson, an Indiana-based company, including three sites
in Indiana.”

Criminal – Sentence/Plea Agreement

Travis Koontz v. State of Indiana

29A05-1202-CR-77

A man who pleaded guilty to misdemeanor charges and whose sentence exceeded statutory authority must nonetheless serve the
term, a divided Court of Appeals ruled.

Travis Koontz was charged with misdemeanor false informing, driving while suspended, and operating a vehicle while intoxicated.
He pleaded guilty to the latter two charges and agreed to a sentence of 365 days in jail with 18 days to be executed and 365
days of probation for the Class B misdemeanor driving while suspended conviction, along with 60 days in jail with 18 days
to be executed and 365 days of probation for the Class C misdemeanor drunken-driving conviction. The sentences were to run
concurrently.

Though the maximum sentence for a Class B misdemeanor is 180 days and the maximum term for any misdemeanor is one year, two
of the three judges ruled that the plea agreement between Koontz and the state prevailed.

“Concluding that Koontz waived any error in his sentence by consenting to the sentence as part of a plea agreement,
we affirm,” Chief Judge Margret Robb wrote. Judge Cale Bradford joined in the opinion.

But Judge John Baker wrote that had Koontz gone to trial and been convicted, at least one of the initial charges against
him would have constituted double-jeopardy, and that Koontz received no benefit from the plea agreement.

“I acknowledge that our Supreme Court has made it clear that “[a] defendant ‘may not enter a plea agreement
calling for an illegal sentence, benefit from that sentence, and then later complain that it was an illegal sentence.’”
Lee v. State, 816 N.E.2d 35, 40 (Ind. 2004) (quoting Collins v. State, 509 N.E.2d 827, 833 (Ind. 1987)),”
Baker wrote.

“The practical effect is that only the charge of class B misdemeanor false informing was dismissed pursuant to the
plea agreement. Nevertheless, Koontz was exposed to a combined term of imprisonment and probation that exceeded statutory
limits. Accordingly, in cases where the offenses are misdemeanors or minor felonies, the potential for abuse could be too
great to justify permitting the imposition of illegal sentences through plea agreements. Therefore, I would reverse,”
Baker wrote.

But the majority found that Koontz had benefited from the plea deal and appealed the sentence only after he violated terms
of probation and was ordered to serve 240 days in jail.

“Had the trial court had discretion in sentencing Koontz, he could have received a sentence of up to one year imprisonment,
and by virtue of the plea, he was to serve only eighteen days. The dissent believes that ‘where the offenses are misdemeanors
or minor felonies,’ … the potential for abuse is too great and the benefit too small to justify allowing an illegal
sentence to stand because it was the result of a plea bargain. We do not believe it is our place to categorically declare
the Supreme Court’s position inapplicable to misdemeanors,” the opinion states.

Miscellaneous – Disability Benefits

Indiana Public Employee Retirement Fund v. Paul Bryson

49A04-1201-MI-2

A Brownsburg firefighter is entitled to disability benefits that a trial court enhanced after an appeal from the local pension
board, a divided court of appeals panel ruled.

The appeals court ruled that Marion Superior Judge Michael Keele did not err when ruling that Paul Bryson was entitled to
“level 1” disability benefits from the Indiana Professional Employees Retirement Fund. Keele’s ruling came
after Bryson appealed a determination by an administrative law judge that Bryson was entitled to lesser “level 2”
benefits because he had a pre-existing back condition that contributed to injuries he sustained on the job.

Chief Judge Margret Robb wrote for the majority. “We conclude that a fund member who was able to perform his job duties
before an on-duty injury despite having a pre-existing condition or health issue that preceded the on-duty injury, and who
becomes unable to perform his job duties only after sustaining an on-duty injury, has an impairment that is the ‘direct
result’ of the physical injury or injuries sustained while on duty.”

Bryson’s “covered impairment is the ‘direct result’ of his three on-duty personal injuries for the
purposes of Indiana Code section 36-8-8-12.5(b)(1) and the trial court did not err in setting aside PERF’s determination
otherwise,” Robb wrote.

Judge Cale Bradford dissented. He wrote that the majority interpreted the statute correctly, but he disagreed that Bryson’s
covered impairment met the “direct result” standard. Bradford said the record shows Bryson is unable to continue
to work as a firefighter because of pain from his pre-existing condition.

“Given Bryson’s safety-sensitive position as a firefighter, this risk renders him unable to perform the duties
of his employment. The record supports the conclusion that, among other things, Bryson’s work as a firefighter generally
contributed to his degenerative disc disease. Therefore, he should be entitled to Class 2 coverage,” Bradford wrote.
“I would reverse the trial court’s judgment and affirm the agency’s decision on these other grounds.”

__________

Oct. 10

Juvenile – Abuse/Sibling Interview

In the Matter of G.W. (Minor Child); A.W. (Mother) and J.W. (Stepfather) v. The Indiana Dept. of Child Services

07A01-1201-JM-6

An Indiana Court of Appeals judge reached the opposite conclusion of her colleagues in finding that the Department of Child
Services lacks the statutory authority to conduct a forensic interview of a non-subject child residing in the same home as
a child who has claimed abuse by a resident family member.

Mother A.W. appealed the Brown Circuit Court order granting the DCS’ petition to interview then 9-year-old G.W., whose
12-year-old sister M.F. had alleged then recanted that her stepfather touched her inappropriately. In investigating the claim,
DCS received copies of diary entries stored under M.F.’s password on her grandmother’s computer that described
sexual intercourse between the girl and her stepfather. M.F.’s biological father also claimed that G.W. told her mother
about the inappropriate touching between M.F. and the stepfather.

M.F. recanted her claims, saying she was angry with her mother for not spending enough time with her, and denied making the
diary entries. DCS wanted to interview G.W., but her mother refused. DCS then filed an emergency petition with the court to
be able to interview the girl, based on I.C. 31-33-8-7 and 31-32-12. Those statutes make reference to interviews with the
child subject to the investigation. G.W. never claimed to be abused.

The trial court granted the order, relying on the language that requires an assessment of the name and condition of the other
children in the home when investigating an abuse claim.

Judges Terry Crone and L. Mark Bailey affirmed, interpreting I.C. 31-33-8-7 as applicable to a child who is not the subject
of an abuse investigation. The majority pointed to the seriousness of M.F.’s allegations and that the two girls are
close in age. Just because their mother vouched for G.W.’s safety doesn’t mean the DCS’ and the trial court’s
concerns are unwarranted, he wrote.

Judge Patricia Riley’s dissent focused on the statutes in question. She believed the language did not apply to children
who are not subject to the abuse investigation. The only route the DCS could take because A.W. refused to make G.W. available
for a forensic interview is for DCS to file a certification by a physician that an emergency existed, which would allow the
trial court to order the examination. The DCS did not do that.

“Although the majority invokes its ‘common sense’ in interpreting the statute, in essence, it just presented
the DCS with a broad enlargement of its authority by effectively erasing the safeguards our Legislature granted to ‘other
children in the home,’” she wrote. “I refuse to subscribe to the majority’s interpretation of ‘common
sense.’”

Criminal – Court Costs/Method of Correction

Tim L. Godby v. State of Indiana

33A01-1203-CR-128

The Indiana Court of Appeals found a man’s pro se motion to correct erroneous sentence was not the proper channel to
challenge the imposition of court costs following his murder trial.

Tim Godby was convicted of murdering Jeffery Asberry in New Castle in 1995 and sentenced to 60 years in prison. He was also
ordered to pay court costs. His conviction was affirmed by the Supreme Court on direct appeal and the COA denied Godby’s
petition for post-conviction relief in 2004.

His 2012 pro se motion to correct erroneous sentence makes two claims: that the trial court abused its discretion with respect
to the finding of at least one aggravating circumstance, and that the court failed to fully comply with I.C. 35-38-3-2(b),
which provides a list of items a sentencing judgment must include.

The judges quickly dismissed his first claim because he should have addressed it on direct appeal or post-conviction relief.
He may not do so now.

They found the trial court erred when imposing the court costs because it did not include in the judgment of conviction the
amount of court costs, whether Godby was indigent, and the method of satisfying the court costs.

But court costs imposed in a criminal action are not part of the sentence, so his belated attempt to correct error through
this motion is not proper. The Henry Circuit Court was correct in denying his motion to correct erroneous sentence, the judges
ruled.

__________

Oct. 11

Civil Plenary – Eminent Domain/I-69

William A. Boyd and Janice Ann Boyd v. State of Indiana

28A01-1203-PL-108

For the second time in less than a month, the Indiana Court of Appeals has affirmed the state’s taking of property
in southwestern Indiana for construction of Interstate-69.

William and Janice Boyd challenged the state’s eminent domain proceedings taking portions of real estate in Greene
County owned by the Boyds. The Boyds objected, claiming the state violated various federal laws, the state’s offer to
purchase was deficient, and the state sought to acquire more property than necessary.

The trial court struck the objections, condemned the property and appointed appraisers to determine the amount of just compensation
to the Boyds.

In an eight-page decision authored by Senior Judge Randall Shepard, the judges quickly dismissed the Boyds’ objections.
The couple argued that the interstate construction doesn’t comply with federal environmental statutes, but that challenge
is to the legality of the project, not the legality of the taking. Property owners in Greene County recently made a similar
objection in their appeal of the taking of their land for the interstate, and another appellate panel ruled just as the instant
court has.

The judges ruled that the Boyds’ claim pertaining to the purchase offer being deficient is settled by Burd Mgmt.
LLC v. State, 831 N.E.2d 104, 109 (Ind. 2005). While the Indiana Department of Transportation is required to make an
offer, it is not required to prove that it did so, as the Boyds’ argued, Shepard wrote.

The COA also ruled that the Boyds’ claim that the state does not need the amount of land condemned for the I-69 project
is not a proper subject for judicial review.

Criminal – Child Molestation/Testimony

David E. Lyons v. State of Indiana

76A03-1112-CR-582

The admission of testimony by a licensed clinical psychologist at a man’s child molestation trial in Steuben County
was not a fundamental error, the Indiana Court of Appeals held. David E. Lyons appealed his five convictions of Class A felony
child molesting related to incidents with his niece in 2004 through 2006 when the girl was around 10 years old. In 2010, after
developing a number of emotional problems, K.F. told nurses at a hospital that her uncle had been molesting her.

At Lyons’ jury trial in 2011, Dr. Judith Williams, a licensed clinical psychologist with extensive experience counseling
child victims of sexual abuse, testified on behalf of the state. While she had counseled K.F. for a short period of time,
her testimony was not specifically related to K.F.’s treatment and, instead, was about general characteristics, mannerisms,
and behaviors common among child abuse victims.

Lyons only objected once to part of her testimony, so on appeal, he brought a fundamental error challenge. He claimed that
his convictions should be reversed because Williams based her responses on speculation.

The judges found Lyons mistakenly contended that Williams’ testimony was “scientific testimony” and is
governed by Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). However, Williams’ testimony
was actually “specialized knowledge,” under Ind. Evidence Rule 702(a), and any weakness or problems in the testimony
only go to the weight of the testimony, not to its admissibility.

Williams’ testimony was about matters commonly observed in sexual abuse victims based on her practice and in psychological
literature. Lyons was free to cross-examine her regarding studies she cited, but did not, Judge John Baker wrote.

The judges also disagreed with Lyons’ assertion that the admission of Williams’ testimony violates the principles
set forth in Steward v. State, 652 N.E.2d 490 (Ind. 1995). Admission of her testimony was not a fundamental error,
and Lyons’ convictions and 150-year sentence is affirmed.

In reaffirming a Lake Superior Court decision that granted former doctor Mark Weinberger’s motion that two men suing
him undergo psychological examinations, the Indiana Court of Appeals clarified that there is no requirement that a trial court
must compel an involuntary psychiatric evaluation when faced with similar facts and circumstances as in the instant cases.

Lake Superior Judge Jeffery Dywan granted Weinberger’s motion for a Trial Rule 35 Psychological Examination pertaining
to Mark Ashmann and Jeffrey Riggs. Ashmann and Riggs filed medical malpractice complaints against Weinberger in 2010, claiming
Weinberger didn’t comply with applicable standards of care when performing surgeries on their sinus cavities. Both men
claim to have suffered and will continue to suffer pain, emotional distress and mental trauma.

In its original not-for-publication decision, the Court of Appeals affirmed Dywan’s ruling, finding the nature of the
two men’s claims are more like negligent infliction of emotional distress and their claims of emotional distress are
complicated. It also held that Weinberger’s request for a psychological examination to evaluate their claims demonstrated
good cause for the evaluations.

On rehearing, the appellate court clarified that a trial court “may” – not “must” – order
an involuntary psychiatric examination when confronted with the facts and circumstances of this case. It also reaffirmed the
original opinion in all respects.

Landowners challenging the annexation of portions of land in Hamilton County to the city of Westfield lost their appeal before
the Indiana Court of Appeals. The remonstrators claimed the city’s delayed publication of annexation ordinances should
have barred the annexation.

The city passed ordinances to annex certain parcels of land in Washington Township, Hamilton County in September 2008. But
Westfield didn’t publish the ordinances in the local newspaper until Dec. 6, 2008 – 71 days after the mayor signed
the ordinances.

The remonstrators claimed this should bar annexation because the city didn’t publish the ordinances within the 30-day
period outlined in Indiana Code 36-4-3-7(a). Westfield argued that the remonstrators lacked standing to challenge the annexation.

Hamilton Superior Judge William Hughes found the remonstrators had standing, but ruled in favor of the city on annexation.

The Court of Appeals agreed with the remonstrators that the city conflated the requirements for a remonstrance petition with
those at a remonstrance hearing. Statute holds that standing is established at the trial court’s certification of the
remonstrance petition.

“Once certified, whether the required number of remonstrators ‘continued to oppose the annexation’ is simply
a matter to be proved at the evidentiary hearing,” Judge Patricia Riley wrote.

The judges rejected the remonstrators’ claim the delay in publishing the ordinances should bar annexation because they
failed to show that the city committed a procedural wrong so severe that their substantial rights have been affected. The
failure to publish does not affect the power to annex; it merely renders the ordinance inoperative until publication is made,
Riley wrote.

“Thus, rather than becoming void, the Ordinances at issue here simply went into effect at a later date. Further, the
record shows that belated publication did not impair the Remonstrators’ substantial rights since Remonstrators’
request to the City for evidence of publication of the Ordinances prompted the City to publish them,” she wrote.

__________

Oct. 16

Criminal – Theft

Charles Mitchell v. State of Indiana

49A02-1202-CR-125

The Indiana Court of Appeals dismissed a man’s argument that he didn’t know he couldn’t take a water heater
from an Indianapolis apartment complex to scrap, finding that the evidence supports his theft conviction.

Charles Mitchell and two men were attempting to break up and take a water heater that was in the grass on the property when
an apartment employee and the assistant manager told them to stop. The men told Susan Revak, the assistant manager, that a
“big Hispanic supervisor” told them they could take it, but no such employee worked for the complex.

The men tried to drive away, but Revak jumped in front of their truck and ordered an employee to call the police. The men
pulled over and stopped.

Mitchell was charged with Class D felony theft and Class A misdemeanor criminal mischief, but he was only convicted of theft.
Marion Superior Judge Rueben Hill gave him the advisory sentence of one-and-one-half years, with all but 60 days suspended
to probation.

Mitchell argued that his conviction can’t stand because he didn’t know the men couldn’t take the water
heater. He was relying on information given to him by one of the men, Virgil Jones, who claimed they were allowed to take
the heater.

The Court of Appeals pointed out that any belief Mitchell had that he could take the water heater became unreasonable when
Revak unequivocally told them that no one with the apartment complex had given permission to take the water heater and to
take it out of the truck.

The imposition of the advisory sentence was also appropriate, the judges held, as Mitchell failed to prove otherwise.•